FEDERAL COURT OF AUSTRALIA

MWL Financial Group Pty Ltd v Focus Australia Holdings LLC [2020] FCA 548

ORDERS

THE COURT ORDERS THAT:

1.    The trial provisionally listed for 20 April 2020 is vacated.

2.    The Respondents’ objection to the First Applicant’s notice to produce dated 4 October 2019 is referred to Registrar Gitsham for hearing and determination on 23 March 2020 at 10.15am.

3.    The Applicants are granted leave to file the further amended statement of claim dated 10 March 2020.

4.    The second, sixth, ninth and tenth applicants and the second and third cross-respondents (Injunction Applicants) are granted leave to file the amended interlocutory application dated 10 March 2020 (Amended Interlocutory Process).

5.    The Amended Interlocutory Process is dismissed.

6.    The Injunction Applicants shall pay the Respondents / Cross-Claimants’ costs of and incidental to the Amended Interlocutory Process.

7.    By 4pm on 20 March 2020, the Injunction Applicants shall file and serve submissions of not more than three pages regarding the costs of the Eleventh, Seventeenth and Eighteenth Cross-Respondents in respect of the Amended Interlocutory Process.

8.    Prior to the date of the case management conference in Order 11 below (and in any event by no later 4pm on 25 March 2020), the Eleventh, Seventeenth and Eighteenth Cross-Respondents shall file submissions of not more than three pages in response.

9.    The proceeding is referred to a mediator to be agreed between the parties, or in default of agreement to be appointed by the Court, such mediation to take place by 30 April 2020.

10.    The Seventeenth and Eighteenth Cross-Respondents are joined as respondents to the proceeding.

11.    There be a case management conference on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANASTASSIOU J:

1    The second, sixth, ninth and tenth applicants (the White-Kortesis parties) seek an injunction pursuant to s 23 of the Federal Court Act 1976 (Cth) to restrain the fifth respondent (Focus MWL) and its officers and agents from arranging to hold, holding or purporting to hold a general meeting of the first applicant, pursuant to a Notice of General Meeting dated 10 February 2020 given by Focus MWL.

2    The meeting was originally scheduled to occur on Tuesday 10 March 2020. However, to allow this application to be heard and determined, Focus MWL agreed to postpone the meeting to Wednesday 18 March 2020.

3    The Notice provides for three resolutions to be voted on at the meeting by all shareholders:

Resolution 1 – Removal of Jonathan Fraser White as a Director

That Jonathan Fraser White be removed as a Director of the Company with immediate effect in accordance with Article 55(a) of the Company’s Constitution.

Resolution 2 - Removal of Louie Kortesis as a Director

That Louie Kortesis be removed as a Director of the Company with immediate effect in accordance with Article 55(a) of the Company’s Constitution.

Resolution 3 – Appointment of Louis Weingarten as a Director of the Company

That Louis Weingarten, having consented to his nomination as director of the Company, be appointed as a Director of the Company with immediate effect in accordance with Article 55(a) of the Company’s Constitution.

4    Mr White and Mr Kortesis are the controllers of the White-Kortesis parties. They are Class B shareholders in MWL (the share structure of MWL is described in brief later). Mr White and Mr Kortesis are also presently in control of the day-to-day operations of MWL in their capacities directors of MWL. Mr White is Managing Director and Mr Kortesis is described as Manager of the Accounting Division.

5    Mr Weingarten controls a company called Risk & Business Consultants Pty Ltd (RBC). RBC contracts to MWL and is an ‘authorised entity’ of one of MWL’s subsidiaries. There was a resolution passed to end RBC’s relationship with MWL, however this was vetoed by Focus MWL pursuant to powers described below. Mr Weingarten is not personally employed by MWL. Mr Weingarten controls certain Class B shareholders of MWL as set out in the table below.

6    It is noted at this point that there is a third director of MWL in addition to Mr White and Mr Kortesis, Mr Nicholas Maikousis. Mr Maikousis was previously employed by MWL but is no longer.

Shareholding of MWL and the main proceeding

7    MWL’s shareholding is divided into two categories:

(1)    Class A shares, which comprise 49.9% of the shares and carry certain exclusive rights, including a veto right over disputes or litigation, a preferential dividend right, and the right to appoint two of the five directors on MWL’s board; and

(2)    Class B shares, which comprise 50.1% of MWL’s issued capital, and are subject to the veto and dividend rights of the Class A shareholder. Class B shares carry the right to appoint the remaining three directors of the board.

8    The above structure was established by several documents including relevantly a Share Sale Deed dated 4 May 2016 and by the Constitution of MWL. By the Deed, the second respondent, Focus Financial Partners LLC (Focus USA), made an investment in MWL on terms, relevantly that all of the existing shareholders of MWL became Class B shareholders. Focus MWL became the holder of all of the Class A shares. Focus MWL is a wholly owned subsidiary of Focus USA.

9    The Class B shares are now held by 17 entities controlled by 12 different people as set out in the following table:

10    The main proceeding originally concerned a claim by MWL (brought by derivative leave on behalf of a subset of the Class B shareholders) against:

    The first respondent, Focus Australia Holdings LLC (Focus Australia);

    Focus USA;

    Focus MWL (together with Focus USA and Focus Australia, hereafter the Focus entities); and

    The second and third respondents, being persons involved in the management of the Focus entities and the Focus entities’ appointees to the board of MWL, Rajini Sundar Kodialam and Molly Lynn Bennard. On 11 February 2019 Ms Bennard and Ms Kodialam resigned as Class A directors of MWL and have not been replaced.

11    In brief, MWL alleged that an opportunity rightfully its had been diverted to the Focus entities by Ms Bennard and Ms Kodialam.

12    On 24 December 2019 the second to tenth applicants, being a subset of the Class B shareholders of MWL, amended their statement of claim to include a claim for oppression on the basis of conduct of Focus MWL, in particular regarding the use of its veto powers.

13    On 3 February 2020 Focus USA, Focus MWL and Focus Australia (as first to third cross-claimants respectively) brought a cross-claim for oppression against MWL, Mr Kortesis, Mr White, and all of the Class B shareholders (as the first to twentieth cross-respondents respectively). The cross-claim also alleges oppression, more specifically that MWL has not acted in compliance with the Deed by, inter alia, failing to provide financial statements to Focus USA and Focus MWL in accordance with its terms, engaging in unapproved borrowing, and failing to pay Focus USA dividends.

The present application

14    The amended application presently before the Court is for relief in the following terms:

1.    An order that [Focus MWL], its officers and agents be restrained from arranging to hold, holding or purporting to hold a general meeting of [MWL] pursuant to [the Notice] until the trial of this proceeding or further order.

2.     In the alternative to paragraph 1, an order that [Focus MWL]be restrained from voting or purporting to vote on any resolutions to remove Louie Kortesis or Jonathon White as directors of MWL until the trial of this proceeding or further order.

 3.    An order that the respondents pay the applicants’ costs of this application.

 4.    Such further order as the Court sees fit.

15    The alternative order for relief referred to in 2 was abandoned during the hearing.

16    It is well established that to obtain the interlocutory relief sought, the White-Kortesis parties must establish a prima facie case and that the balance of convenience favours them: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. The partition between these two requirements is not absolute, as Courts have long-held. A claim with a weaker prima facie case may still attract interlocutory injunctive relief where the balance of convenience weighs heavily in favour of it: Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 at [39].

17    The Court should not lightly interfere with the exercise of rights of members to govern the company in general meeting. The board is accountable to the members in general meeting and only a compelling case will justify injunctive intervention. A fortiori, the Court will not lightly interfere where, as here, the majority of Class B shareholders other than the White-Kortesis parties wish the meeting to proceed.

18    The White-Kortesis parties claim they have a prima facie case to enjoin the meeting as the removal of Mr White and Mr Kortesis would be oppressive. The removal was originally said to be oppressive for the following reasons:

(1)    Mr White and Mr Kortesis have a legitimate expectation of ongoing participation in the management of MWL which would be denied by their removal (assuming the resolutions are passed);

(2)    The proposed motions are inconsistent with the rights of Class B shareholders under the Deed; and

(3)    The Explanatory Statement enclosed with the Notice is misleading.

19    During the hearing the second and third bases were abandoned, leaving only the legitimate expectation of participation to be considered on the question of whether there is a prima facie case.

20    For completeness I note that the second ground was abandoned only for the purposes of the present application. The White-Kortesis parties maintain that if Focus MWL were to purportedly vote on the resolutions, such resolutions, if passed as a result of Focus MWL’s vote, would be invalid on the ground that only Class B shareholders are entitled to vote on a resolution to remove a director nominated by class B shareholders.

White’s and Kortesis’ legitimate expectations of participation

21    The case as put on behalf of the White-Kortesis parties was to restrain threatened oppressive conduct. It was said that Mr White and Mr Kortesis held a reasonably based expectation to participate in the management of MWL, which would be denied if the members resolved at the meeting to remove them. Doing so would therefore be oppressive. Mr White and Mr Kortesis contend that their expectations were founded upon assumptions to be inferred from the background and objective surrounding circumstances, including the establishment of MWL’s business as well as from the growth of the business. They also rely on representations said to contain certain implicit representation to the effect that Mr White would enjoy continuing and ongoing management of the company at the Board level. In essence they contend that it was the tacit assumption of negotiations for the investment in MWL by Focus USA that the existing executive directors would continue in their roles post the Focus USA investment. Further, Mr White and Mr Kortesis point to a number of factors which would make it oppressive for their assumption to be dispelled by a resolution removing them as directors. These include Mr White’s role, together with Mr Markousis, as co-founders of the business and Mr White’s substantial financial investment in the business and his exposure to guarantees given to support the company’s business.

22    The White-Kortesis parties primarily relied on three authorities concerning applications to restrain board meetings to vote on the removal of directors: Remrose Pty Ltd v Allsilver Holdings Pty Ltd (2005) 225 ALR 588 per Hasluck J; In the Matter Of Eden Resort Hotel Pty Limited [2013] NSWSC 493 per Black J; and Benjamin Corporation Pty Ltd v Smith Martis Cork and Rajan Pty Ltd [2003] FCA 1471 per Carr J. Further authorities were referred to by the White-Kortesis parties in submissions in reply: In the matter of Optimisation Australia Pty Limited [2018] NSWSC 31; 362 ALR 374; and Brown v Bray & Anor [2019] EWHC 2304 (Ch).

23    The legitimate expectations were said to flow from certain matters analogous to matters found to be supportive of a legitimate expectation in Remrose, Eden Resort, and Benjamin, and certain other matters unique to this case. I will focus on the matters relevant to Mr White, as the factors relevant to his case for a legitimate expectation rise the highest as between he and Mr Kortesis.

24    I now turn to the principal facts and circumstances which the White-Kortesis parties say support their legitimate expectation to ongoing involvement in the management of MWL’s business.

25    Mr White has been the Managing Director of MWL for 10 years. For nine years prior to MWL being formed, he was the manager of the entities combined to create MWL. The White-Kortesis parties point to the similarities between their circumstances and the circumstances in Remrose and Benjamin concerning the tenure of the directors in those cases. In Remrose the relevant director had been Managing Director for 8 years, and in Benjamin 10 years (see [11], [17] and [55] of Remrose, and [32] and [67] of Benjamin).

26    Mr White deposed to being personally liable under guarantees he had given on behalf of MWL. These included MWL’s lease of its business premises in Melbourne. The total liability was said to be in the order of $8 million. Similarly in Remrose the director was liable under personal guarantees to trade creditors (at [16]).

27    Under the Deed Mr White is subject to significant purported restraints on his future employment. This too was a factor relied upon in support of the expectations to which I have referred. On its face, cl 20 of the Deed restrains Mr White from engaging in business activity similar to MWL’s for a maximum of five years from ceasing to be a member (not ceasing to be employed). Restrictive covenants were also a feature of Benjamin (at [64]).

28    Mr White was also said to be the ‘key man’ in the management of MWL, having headed the business for 10 years. He personally led the growth by acquisition strategy the business had adopted, including the acquisition of Mr Kortesis’ accounting practice, and otherwise led the expansion of the business. The status of Mr White as a key man is reflected in the Deed by the requirement, apparently fulfilled, that specific insurance be obtained for him (see similarly Benjamin at [74]). The Deed also named Mr White personally as the Managing Director.

29    Mr White also relies on the fact that, at least in the short term, he is effectively locked-in to his shareholding in MWL. The Deed contains certain restrictions on Class B shareholders being able to sell their shares. They are subject to a mechanism for making shares available, pre-emptively, to co-shareholders in the first instance. This was said to effectively restrict Mr White’s ability to sell his shares without approval from other shareholders.

30    Mr White deposes that he would not have agreed to treat with the Focus entities but for the tacit agreement between the parties that he would continue as the Managing Director of MWL post any investment by them in MWL. Although the White-Kortesis parties accepted that this agreement could not be found in any document, they drew attention to what was said by Hasluck J in Remrose at [136]:

… It clearly emerges from the decided cases that an understanding or agreement underlying the concept need not be established by reference to signed documents or any explicit agreement. The necessary level of agreement can be inferred from the conduct of the parties.

31    The respondents submitted that a legitimate expectation to management could not continue subsequent to Mr White having agreed to the Focus entities’ investment in MWL as described above. They contended that the terms of the Deed and Constitution were contrary to the continuation of any such expectation.

32    The Focus entities contended that the present case is to be distinguished from the cases relied upon by the White-Kortesis parties as MWL is not a ‘closely held quasi-partnership’, but rather a substantial enterprise with a significant body of shareholders whose rights are defined in detail and regulated by the Deed and Constitution.

33    Focus relied upon terms in the Deed which it contends are inconsistent with the expectation. The definition of “director” is any director from time to time. Though Mr White was named as Managing Director, Clause 5.11 expressly provides for the removal of the Managing Director by the Board. A power to remove a director is also found in cl 55 of the Constitution. The Deed also contains an entire agreement clause.

34    In support of these submissions, counsel for the Weingarten parties referred to cl 5.15 and the role of the “Executive Committee”. This clause provides for an Executive Committee to retain oversight of MWL. The Committee is to be populated by persons nominated by the Class B shareholders.

35    Focus further distinguished the authorities relied upon by Mr White and Mr Kortesis, characterising MWL as a large sophisticated company with substantial annual revenue. I note that the Focus entities’ investment was AUD 14 million.

36    I turn now to the cases the White-Kortesis parties raised in reply: Brown v Bray and Optimisation Australia. These cases were primarily referred to rebut Focus’ contention that there was no analogous case of a legitimate expectation being found where there was a negotiated shareholders’ deed.

37    Brown v Bray provides little assistance to the White-Kortesis parties. In that case membership of the company was governed by a shareholders deed. However, the case is otherwise distinguishable from the present. The applicant in that case put his claim to a legitimate expectation on the basis that the shareholding was a “quasi-partnership” (at [5]). The shareholding of the company in question was made up of the three directors and their wives (see [4]). That company was in effect a corporate entity through which three couples conducted a business in partnership or joint venture. Further, the shareholders deed there provided expressly for good faith (at [105]). It was these features of the parties’ relationships which founded a conclusion that they owned each other duties akin to partners or joint venturers (at [108]-[110]). The interests in MWL, at least post the investment by the Focus entities, cannot be compared with a joint venture between three couples.

38    Optimisation Australia takes the White-Kortesis parties no further. Attention was drawn to the statement of Brereton J at [295] to support the proposition that a legitimate expectation may continue despite there being a shareholders deed. His Honour said (with emphasis added to the words on which particular reliance was placed):

Relevant unfairness may arise not only from what the parties have positively agreed, but also from the majority using its legal powers to maintain the association in circumstances to which the minority can reasonably say it did not agree; thus an applicant for relief does not necessarily have to show a breach of promise or breach of undertaking, and the denial of a 'legitimate expectation' arising out of the dealings of the parties may suffice. Such a ‘legitimate expectation’ is a manifestation of the equitable consequences of circumstances such as shareholders associating on the understanding, albeit unexpressed in the articles or any shareholders agreement, that each who has ventured capital will participate in management, creating an “equitable restraint” in the nature of a condition attaching to the exercise of the majority’s legal power, namely that while the majority may if it wishes exercise its legal power to dismiss the minority shareholder from participation, it must afford an opportunity to withdraw his or her investment, because participation in the conduct of the business was an implicit basis on which the investment was made. …

(citations omitted, emphasis added)

39    That case concerned a company described by his Honour (at [137]) as a “start-up family enterprise”. MWL could not be described as a “start-up” and, as I have said above, it was not a “family” company. The MWL shareholding structure, the spread of its shareholders and the arm’s length arrangement between shareholders documented in the Deed and Constitution preclude MWL being characterised as a quasi-partnership with analogous fiduciary duties arising between the shareholders.

Consideration

40    I have concluded that the application to restrain the meeting should be refused. There is a degree of amorphousness inherent in the contention that Mr White has a legitimate expectation of continuing management responsibility for MWL. Such amorphousness is not fatal to the claim. However, in the circumstances of this company, the expectation founders against the terms of MWL’s Constitution and the terms of the Deed, by their terms those agreements fight against recognition of the expectation.

41    Such expectation also founders against the objective fact that Focus invested $14 million in MWL after negotiation between arm’s length commercial parties each represented by lawyers.

42    The tacit assumption that Mr White and the other directors of MWL, at the time of the Focus investment, would continue in their roles post the Focus investment is not unequivocally supportive of the assumption or expectation which Mr White contends for. That circumstance is consistent with it being convenient at the time from Focus’ perspective that the management of MWL should continue, subject to the rights and obligations embodied in the Deed and the Constitution. It was not asserted that there was any explicit agreement concerning an ongoing management position for Mr White, nor any explicit representation to that effect. In cross examination, Mr White candidly conceded that he understood that his tenure was subject to the rights contained in the Deed. He conceded that “technically” he could be removed in accordance with those rights, and said that by “technically” he meant that though he could be removed, he did not expect that would occur.

43    For these reasons, in my view the White-Kortesis parties’ claim based upon the alleged expectation does not constitute a serious issue to be tried, or only barely amounts to a serious issue to be tried.

44    What I have said does not mean that the facts and contentions relating to the alleged legitimate expectation are irrelevant to the White-Kortesis parties’ broader claim for oppression, considered in light of, and together with, other facts and circumstances upon which they may rely at the trial of the proceeding. However, for the purposes of the present application, the claim as framed does not rise high enough to raise a prima facie case of sufficient weight to justify restraining members from exercising their rights in general meeting.

45    Having concluded there is not a sufficiently serious issue to be tried, it is strictly unnecessary to say anything about the balance of convenience. The applicants relied on a variety of factors, several of which individually and taken together are of significance. However, none are sufficient in the circumstances to outweigh the interests the members of the company to exercise their rights in general meeting. In this regard it is important to note that a substantial majority of the Class B shareholders oppose the application to restrain the holding of the meeting.

46    For the above reasons the application is refused.

Associate:

Dated:    29 April 2020

SCHEDULE OF PARTIES